Citation Nr: 0414061
Decision Date: 06/02/04 Archive Date: 06/10/04
DOCKET NO. 02-14 812 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUES
1. Entitlement to service connection for left leg disability
secondary to service-connected disabilities.
2. Entitlement to service connection for low back disability
secondary to service-connected disabilities.
3. Entitlement to service connection for disability
involving the right lower extremity to include right knee
disabilities.
4. Entitlement to an increased evaluation of service
connection bilateral pes planus, currently related as 30
percent disabling.
5. Entitlement to an increased evaluation of service
connection left knee replacement, currently evaluations as 30
percent disabling.
6. Entitlement to a total disability rating based on
individual unemployability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J.R. Bryant, Counsel
INTRODUCTION
The veteran served on active duty from November 1951 to
October 1953.
This matter originally came to the Board of Veterans' Appeals
(Board) on appeal from a rating decision of the Department of
Veterans Affairs Regional Office (RO) in Pittsburgh,
Pennsylvania.
The issues of entitlement to service connection for a right
lower extremity disorder, and entitlement to a total rating
based on individual unemployability due to service-connected
disabilities are REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC. VA will notify
you if further action is required on your part.
FINDINGS OF FACT
1. There is no medical evidence that the veteran currently
has a left leg disability.
2. A low back disability was not manifested in service and
is not shown by competent evidence to be related to service
or any service-connected disability.
3. Bilateral pes planus is not productive of pronounced
disability manifested by marked pronation, extreme tenderness
of the plantar surfaces of the feet, and marked inward
displacement and severe spasm of the tendo Achillis on
manipulation which is not improved by orthopedic shoes or
appliances has not been objectively demonstrated.
4. The veteran's service-connected status-post left total
knee replacement is symptomatic and productive of some
functional impairment, but is not manifested by severe
painful motion or weakness of the extremity, ankylosis of the
knee, extension of the leg limited to more than 20 degrees,
or the equivalent of nonunion with loose motion of the knee.
CONCLUSIONS OF LAW
1. The veteran does not have present left leg disability for
which service connection can be granted. 38 U.S.C.A.
§§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §
3.303 (2003).
2. The veteran's low back disability is not proximately due
to or the result of service-connected left knee or pes
planus, and was not aggravated thereby. 38 U.S.C.A. §§ 5103,
5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2003).
3. The criteria for a rating in excess of 30 percent for
residuals of a left total knee replacement have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.40,
4.45, 4.71a, Diagnostic Code 5055 (2003).
4. The criteria for a rating in excess of 30 percent for
bilateral pes planus have not been met. 38 U.S.C.A. §§ 1155,
5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5276
(2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board notes that there has been a significant change in
the law during the pendency of this appeal, with enactment of
the Veterans Claims Assistance Act of 2000 (VCAA), now
codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107, 5126 (West 2002). This law redefines the obligations
of VA with respect to the duty to assist, including to obtain
medical opinion where necessary, and includes an enhanced
duty to notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits.
The Board is cognizant of the holding in Pelegrini v.
Principi, 17 Vet. App 412 (2004), wherein the United States
Court of Appeals for Veterans Claims (Court) held that the
plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires
that notice to a claimant pursuant to the VCAA be provided
"at the time" that, or "immediately after," the Secretary
receives a complete or substantially complete application for
VA-administered benefits. In the present case, notice was
given the veteran prior to the rating action in June 2002, in
2 letters dated in December 2001, and a letter dated in
February 2002.
Accordingly, the Board concludes it should proceed, as
specific notice as to which party could or should obtain
which evidence has been provided in effect and no additional
pertinent evidence appears forthcoming. See Quartuccio v.
Principi, 16 Vet. App. 183 (2002). The claimant has
sufficient notice of the type of information needed to
support said claim and the evidence necessary to complete the
application. Therefore, the duty to assist and notify as
contemplated by applicable provisions, including the Veterans
Claims Assistance Act of 2000, has been satisfied with
respect to said issue on appeal. Accordingly, appellate
review may proceed without harm or prejudice to the
appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993).
1. Service connection
In order to establish service connection for a claimed
disability the facts must demonstrate that a disease or
injury resulting in current disability was incurred in active
military service or, if pre-existing active service, was
aggravated thereby. 38 U.S.C.A. §§ 1110, 1131 (West 2002);
38 C.F.R. § 3.303 (2003). Where there is a chronic disease
shown as such in service or within the presumptive period
under § 3.307 so as to permit a finding of service
connection, subsequent manifestations of the same chronic
disease at any later date, however remote, are service
connected, unless clearly attributable to intercurrent
causes. 38 C.F.R. § 3.303(b) (2003). Service connection may
be granted for any disease diagnosed after discharge, when
all the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d) (2003).
Establishing direct service connection for a disability that
was not clearly present in service requires the existence of
a current disability and a relationship or connection between
that disability and a disease contracted or an injury
sustained during service. Cuevas v. Principi, 3 Vet. App.
542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).
Service connection may also be established on a secondary
basis for a disability, which is proximately due to, or the
result of, a service-connected disease or injury. See 38
C.F.R. § 3.310(a) (2001). Any additional disability
resulting from the aggravation of a non-service-connected
condition is also compensable under 38 C.F.R. § 3.310(a).
See Allen v. Brown, 7 Vet. App. 439, 448 (1995).
In a May 1954 rating action, service connection was granted
for left knee disability and pes planus. Ten percent and
noncompensable evaluations were assigned respectively. The
record discloses that these disabilities were was the subject
of subsequent adjudication by the RO between 1955 and 2001.
Thirty percent evaluations were ultimately granted for each
disability. In November 2001, the veteran filed claims for
service connection for left leg and low back disabilities
secondary to either the service-connected left knee and/or
pes planus.
a) left lower extremity
The Board initially notes that the veteran does not contend
that he has a left leg disability arising directly from his
military service. Rather, he contends that he has a leg
disability secondary to his service-connected disabilities.
The Board observes in passing that service medical records
fail to reveal any significant ongoing left lower extremity
disability other than the left knee, for which service
connection has already been established. Service medical
records are otherwise negative for additional injury or
disability to the to the left lower extremity.
The Board has reviewed the evidence of record, and for
reasons which will be expressed in greater detail below, the
Board finds that a left leg disability was not incurred as a
result of either of the veteran's service-connected
disabilities. The Board bases this conclusion on the medical
evidence of record, which supports the proposition that the
veteran does not in fact have a post service left leg
disability.
Post service evidence of record consists of VA and private
treatment records, which together cover the period from 1953
to 2002. These records show ongoing evaluation and treatment
for left lower extremity problems, primarily his service-
connected left knee and a nonservice-connected back
disability. Review of these records fails to disclose
medical evidence of a separate left lower extremity disorder.
Of some significance is a private treatment report dated in
June 2000, which shows that during examination of the
veteran's left knee, further evaluation of the entire left
lower extremity was unremarkable. At that time the toes were
neurovascularly intact, distal pulses were good and there was
no calf tenderness. Range of motion of the ankle and hip
were good with no pain on internal or external rotation. The
most recent entry dated in November 2001 showed examination
of the left lower extremity was benign.
Analysis
The primary impediment to a grant of service connection for
left leg disability is the absence of medical evidence of a
diagnosis.
The post-service records are notably negative for any medical
evidence, documenting complaints, findings or treatment of
residuals of a left lower extremity disability. In fact, the
veteran has not clearly articulated what symptoms he
experiences that are from the claimed left lower extremity
disability. There is no medical evidence showing a current
diagnosis of an additional left lower extremity disorder,
other than the service-connected left knee.
Thus a "disability" for VA compensation benefit purposes is
not shown to be present in this case. Although the veteran
has asserted that he currently suffers from a left leg
disability, he has offered no medical evidence, which
indicates that these complaints are manifestations of an
actual medical disorder. The veteran's complaints of pain
alone cannot satisfy the criteria for a current disability.
See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) [service
connection may not be granted for a diagnosis of a disability
by history or for symptoms unaccompanied by a current
diagnosis]. Therefore, the Board finds that there is no
medical basis for holding that the veteran's claimed left leg
disability and any service-connected disability are
etiologically or causally associated. This also refutes any
grant of service connection on the basis of Allen, which
would be permitted if any service-connected disability caused
aggravation of any left leg disability.
The veteran's allegations of entitlement have been
considered, but his statements and testimony are not
competent evidence of causality. As a layperson, he is not
competent to give a medical opinion on diagnosis or etiology
of a disorder. LeShore v. Brown, 8 Vet.App. 406 (1995); Dean
v. Brown, 8 Vet.App. 449 (1995).
In the absence of competent evidence of left leg disability,
the preponderance of the evidence is against the claim and
there is no doubt to be resolved. 38 U.S.C.A. § 5107(b)
(West 2002).
b) low back disability
Service medical records are totally devoid of any report or
clinical finding of a low back disability. Significantly,
there was no reference to back pain at the time of his
service separation examination. Instead, a clinical
evaluation of the spine and other musculoskeletal system, was
found to be normal. The veteran reported no pertinent
complaints. As such, the veteran's service medical records
do not affirmatively establish that a chronic low back which
had its onset during his military service.
Post service evidence of record consists of VA and private
treatment records, which together cover the period from 1953
to 2002. Of some significance is an April 2001 X-ray of the
lumbosacral spine which shows degenerative disc disease L5-S1
with degenerative joint disease L5-S1. At that time the
veteran gave a history of back pain since 1960.
During VA examination in March 2002, the veteran recalled no
specific low back injury but indicated increasing low back
pain over the last 5-10 years. X-rays of the lumbar spine
show well-preserved disc heights other than at the L5-S1
junction with only minimal degenerative changes at that
level. The pars and posterior elements appeared intact
without injury. The pedicles appeared somewhat short in
anterior to posterior length. The clinical assessment was
back pain, mostly mechanical in nature. The examiner
concluded that veteran's reported history was consistent with
stenosis, which could not be confirmed with out an MRI.
However there was no link between the veteran's service
connected pes planus and low back symptomatology.
Analysis
The veteran maintains that he developed a low back disability
as a result of his service-connected pes planus or left knee
disability. He does not contend that his low back disability
began in service, or is directly related to his active
service. Rather, he has limited his argument to principles
of secondary service connection. As such, the Board will
analyze the veteran's claim on that basis.
While post-service medical evidence shows complaints and
treatment for a low back disability, it fails to indicate
that the veteran's service-connected disabilities played a
significant role in the development or worsening of it. Post
service VA and private medical treatment records show he
first received treatment for low back pain in 2001 with no
discussion regarding etiology. Moreover the March 2002 VA
examiner specifically found no significant causal connection
between the veteran's current back disability and his
service-connected pes planus.
The veteran is clearly of the opinion that his claimed low
back disability is related to his service connected
disabilities. However, he has not brought forth any medical
evidence that would either refute the VA opinion or suggest a
nexus between his claimed back disability and any service
connected disability, and a layman such as the veteran is not
competent to offer a medical opinion. Espiritu v. Derwinski,
2 Vet. App. 492 (1992). The single competent medical opinion
in the record conclusively found no etiological relationship
between the service-connected disabilities and subsequent
development of degenerative disc disease. Thus, the Board
finds that there is no medical basis for holding that the
veteran's claimed disability and service-connected disability
are etiologically or causally associated. This also refutes
any grant of service connection on the basis of Allen, which
would be permitted if any service-connected disability caused
aggravation of the disc disease.
2. Increased rating
Disability evaluations are determined by comparing a
veteran's present symptomatology with the criteria set forth
in VA's Schedule for Rating Disabilities, which is based on
average impairment in earning capacity. 38 U.S.C.A. § 1155
(West 2002); 38 C.F.R. Part 4 (2003). When a question arises
as to which of two ratings apply under a particular
diagnostic code, the higher evaluation is assigned if the
disability more closely approximates the criteria for the
higher rating; otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7 (2003). After careful consideration of the
evidence, any reasonable doubt is resolved in favor of the
veteran. 38 C.F.R. § 4.3 (2003). The veteran's entire
history is reviewed when making disability evaluations.
38 C.F.R. § 4.1 (2003); Schafrath v. Derwinski, 1 Vet. App.
589, 592 (1995). Although a review of the recorded history
of a disability is necessary in order to make an accurate
evaluation, see 38 C.F.R. §§ 4.2, 4.41 (2003), the
regulations do not give past medical reports precedence over
current findings where such current findings are adequate and
relevant to the rating issue. See Francisco v. Brown, 7 Vet.
App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999).
a) pes planus
In a May 1954 rating action, service connection was granted
for pes planus, and a noncompensable evaluation was assigned.
The record discloses that this disability was the subject of
subsequent adjudication by the RO between 1997 and 2001. The
current evaluation is 30 percent.
The veteran requested a higher rating in November 2001. In
support of this claim is a July 1996 VA examination. At that
time the veteran complained of chronic foot pain and
difficulty walking or standing for prolonged periods. On
examination the veteran had bilateral fallen arches left
greater than right. He had pain with range of motion while
weight bearing but overall function was normal. Both gait
and circulation were normal as well. There were no secondary
skin or vascular changes noted. The diagnosis was marked pes
planus deformity with mild degenerative changes in all toes.
He had soft molded arch inserts in his shoes, which he had
just received.
During VA examination n March 2002 the veteran reported that
his pes planus affected him to the point where he required
orthotics, which helped some. He never sought surgical
intervention to address any foot pain. The foot pain
increased with walking more than 2-3 blocks. He occasionally
took medication due to the severity of the foot pain, which
was described as an aching within the arch. Examination of
the feet with weight bearing showed complete loss of his
longitudinal arch consistent with pes planus. He was able to
recreate an arch with toes stance and swing back behind the
foot back into varus. The motion of the foot was supple.
Pronation and supination of both feet were symmetric and
without discomfort. X-rays were consistent with pes planus
with no other bony abnormality noted. The examiner noted
that veteran's pes planus had remained stable.
VA outpatient treatment records dated from January 2001 to
April 2002 primarily show evaluation and treatment for
unrelated low back, left knee and hip disabilities.
Analysis
The veteran is currently evaluated as 30 percent disabled for
his bilateral pes planus under 38 C.F.R. § 4.71a, Diagnostic
Code 5276. This rating requires severe bilateral flat foot,
with objective evidence of marked deformity (pronation,
abduction, etc.), accentuated pain on manipulation and use,
indication of swelling on use, and characteristic
callosities, is rated 30 percent. Pronounced bilateral flat
foot, with marked pronation, extreme tenderness of plantar
surface of the feet, marked inward displacement and severe
spasm of the tendo Achillis on manipulation, not improved by
orthopedic shoes or appliances, warrants a 50 percent rating.
38 C.F.R. § 4.71, Diagnostic Code 5276 (2003).
Upon review of the evidence, the Board finds that the
preponderance of the evidence is against an increased
evaluation for bilateral pes planus. The medical evidence,
particularly the report from the March 2002 VA examination,
reveals the veteran's bilateral pes planus has remained
stable. The evidence does not show the pes planus to be
pronounced, with the marked pronation, extreme tenderness of
plantar surfaces on the feet, marked inward displacement and
severe spasm of the tendo Achilles on manipulation, not
improved by orthopedic shoes or appliances that a 50 percent
rating would contemplate. The record reveals that the
veteran's ability to walk is also impaired by a combination
of other disorders in the lower extremities, including left
knee, hips and low back.
The specific symptoms cited in Diagnostic Code 5276 as
criteria for a 50 percent rating are absent. Therefore the
Board finds that the veteran's overall level of disability
shown does not more nearly approximate the clinical
manifestations required for a 30 percent rating under
Diagnostic Code 5276. 38 C.F.R. § 4.7 (2003).
Also for consideration is the extent to which factors such as
pain on motion, weakened movement, excess fatigability, lost
endurance, swelling or incoordination, cause functional
impairment. See 38 C.F.R. §§ 4.40, 4.45 (2003), DeLuca v.
Brown, 8 Vet.App. 202 (1995). However, the veteran is
currently in receipt of a 30 percent rating, which
contemplates "pain on manipulation and use of the feet."
Since he does not have objective evidence of weight-bearing
line over or medial to the great toe or inward bowing of the
tendo Achillis, it appears that the 30 percent rating is
justified chiefly on the basis of pain. Further, there is no
evidence of swelling or weakness indicative of significant
functional loss not already included in the assigned 30
percent evaluation. Although the Board is required to
consider the effect of the veteran' s pain when making a
rating determination, and has done so in this case, the
rating schedule does not require a separate rating for pain.
Spurgeon v. Brown, 10 Vet.App. 194 (1997).
Under the rating schedule, a compensable rating may be
assigned to several other foot disabilities, if shown. These
are weak foot (Diagnostic Code 5277), claw foot (Diagnostic
Code 5278), metatarsalgia (Diagnostic Code 5279), hammertoe
(Diagnostic Code 5282), and malunion or nonunion of the
tarsal or metatarsal bones (Diagnostic Code 5283). 38 C.F.R.
§ 4.71a (2003). However, the medical evidence does not show
that any of these conditions have been demonstrated and shown
to be a manifestation of the service-connected disability and
the veteran does not claim that any of them are present. In
the absence of any of these findings, a basis for an
increased evaluation for bilateral pes planus is not found
and the benefit-of-the-doubt rule does not apply.
38 U.S.C.A. § 5107(b) (West 2002).
b) left knee disability
In a May 1954 rating action, service connection was granted
for pes planus, and a noncompensable evaluation was assigned.
The record discloses that this disability was the subject of
subsequent adjudication by the RO between 1997 and 2001. The
current evaluation is 30 percent.
In support of his most recent claim for increase filed in
November 2001 are private treatment records dated from June
2000 to November 2001. These records show that in June 2000
the veteran's chief complaint was of left knee pain. The
veteran's history was significant for two previous knee
surgeries in the mid-1950s. Current X-rays showed
significant collapse of the lateral joint line, significant
osteophyte formation and sclerosis of the joint and mild
patellofemoral disease. The clinical impression was
significant arthritis of the left knee. The veteran elected
to undergo total knee arthroplasty which was performed in
July 2000.
Post-operative follow-up records show that in August 2000,
two weeks after the surgery, the veteran was able to follow
postoperative rehabilitation protocol without difficulty.
The examiner noted the veteran was in "very good condition.
" There was some swelling but no numbness, tingling or
weakness. The toes were neurovascularly intact, with
excellent distal pulses and no calf tenderness. Range of
motion of the left knee was 0 to 70 degrees. In September
2000, the veteran's primary complaint was of stiffness.
Range of motion was from 3 to 85 degrees and X-rays showed a
well-aligned total knee. In October 2000, the veteran
expressed that he was "very happy" with results of his
surgery despite occasional tightness. Range of motion of the
left knee was from 2 to 95 degrees. The most recent entry
dated in January 2001, six months postoperatively, the
veteran was noted to be "doing great" with minimal
restrictions. Range of motion was from 0 to 110 degrees.
The veteran related that he was working at the YMCA.
During VA examination in November 2001, the veteran indicated
that since the surgery he has had approximately 50 percent
reduction in knee pain, in intensity. He described the pain
as sharp, pins and needles and a throbbing sensation. He
also reported that the pain was now present approximately 50
percent of the time, especially at night. The veteran has
been using medication since the surgery, particularly
Darvocet and Oxycodone, on average 3 tablets weekly which
helped to relieve the pain. He continues to use a cane since
the surgery and was able to complete prescribed physical
therapy three weeks post operatively and has continued to
exercise on a regular basis, on his own 2-3 weekly. The
veteran reported that he continued to have subluxation of the
left knee, approximately 6 times over the last year. He
reported a limiting factor of fatigue for the following
activities: he would be able to walk only for five minutes,
stand for five minutes and that sitting beyond 30 minutes
resulted in increased stiffness in the left knee. He also
had problems both ascending and descending stairs, secondary
to instability and limited range of motion of the left knee.
He was able to traverse a maximum of one flight of stairs.
The veteran denied any complications from his knee
replacement, including infections or need for repetitive
procedures.
On examination the veteran was able to walk at length from
the hallway to the examination room approximately 200 feet
before and after exam without distress or significant
alteration in gait and used a cane to assist in ambulation.
He demonstrated bilateral instability with attempted tandem
gait. He was able to ambulate within the confines of the
room, approximately 5-10 feet without assistance of cane.
There was a well-healed incision overlying the left knee
approximately 7 inches in length. There was slight calor
over the left knee but no erythema. There was a palpable
clicking sensation with maneuvers testing for anterior and
posterior instability. However, there was no evidence of
anterior, posterior, medial or lateral instability. There
was apparent fluid accumulation and expected loss of normal
contours of the joints, status post TKA. Left extremity
measurements were essentially symmetrical with slight
increase in the left calf, approximately .5 inches greater
than right calf. Left knee range of motion was limited with
flexion to approximately 90 degrees, extension was possible
to 0. The veteran was able to demonstrate heel-to-shin
maneuver bilaterally with some difficulty appreciated, left
heel to right knee, secondary to limited range of motion of
the left knee. Symmetrical strength of the hip flexors and
extensors, quadriceps and hamstrings, ankle flexion and
dorsiflexion. Bilateral patellar deep tendon reflexes were
intact. X-ray films revealed no evidence of a fracture or
dislocation; there was evidence of the earlier left knee
arthroplasty, and shadows between the cement and bone at the
inferior of the medial portion of tibial component of the
total left knee prosthesis were consistent with loosening of
the tibial component.
VA outpatient treatment records dated from January 2001 to
April 2002 primarily show treatment for among other
disabilities right knee pain, low back pain and hip
arthritis.
During VA examination in March 2002, the examiner noted the
veteran's history of total knee arthroplasty in July 2000,
which currently was doing well. He was able to ambulate
without too much limitation in the left knee and had good
range of motion. The veteran reported being happy with the
knee replacement.
Examination revealed slightly antalgic gait with the short
leg stents on the right with a cane held also in his right
hand. His left knee had a well-healed midline incision as
well as a previous meniscotomy site incision, both well
healed. The knee motion was good from 0 to 110 degrees.
There was no pain with range of motion and no effusion was
noted. The knee was stable to anteroposterior shock. X-rays
showed a well-fixed, well-positioned total knee with
preserved polyethylene which appeared in good order. The
clinical assessment was service-connected left knee, which
had status post replacement doing well.
Additional private outpatient treatment records dated from
October 2000 to October 2002 indicated that the veteran had
been undergoing physical therapy on a regular basis since
October 2000. He received 30 minutes of aerobic conditioning
and performed strengthening and stretching exercises at least
three days per week.
Analysis
Prosthetic replacement of a knee joint is rated 100 percent
for one year following implantation of the prosthesis.
Thereafter, chronic residuals consisting of severe painful
motion or weakness in the affected extremity warrant a 60
percent evaluation. Intermediate degrees of residual
weakness, pain, or limitation of motion are rated by analogy
to diagnostic codes 5256, 5261, or 5262. The minimum rating
for replacement of a knee joint is 30 percent. 38 C.F.R. §
4.71a, Diagnostic Code 5055 (2003).
The veteran underwent a left total knee arthroplasty in July
2000. The RO rated the knee replacement 100 percent for one
year after the surgery (and expiration of a temporary total
convalescent rating) and a 30 percent rating was assigned
thereafter. In reviewing the relevant medical evidence of
record, the Board finds that a rating in excess of 30 percent
is not warranted.
The relevant clinical findings include VA and private
treatment records dated from 2000 to 2002, which document
severe arthritis of the left knee prior to surgery.
Following surgery there was no significant abnormality found
with respect to the veteran's left knee. The VA examination
in November 2001 showed a well-healed surgical scar on the
left knee with 0 degrees of extension and 90 degrees of
flexion; there was no focal tenderness to palpation about the
prosthesis and no swelling or erythema. The examiner noted
the veteran had bilateral instability with tandem gain and
clicking sensation but otherwise no medial or lateral
instability.
The relevant evidence does not show that the veteran's
residuals of a left total knee replacement include severe
painful motion or weakness in the affected extremity so as to
warrant a 60 percent evaluation under Code 5055. There is no
clinical evidence of any instability of the prosthetic joint
or any appreciable weakness of the knee. The veteran's
private physician reported that postoperatively the veteran
was either "doing well" or doing great." Moreover, the
veteran reported that he was "very happy" with the results
of his surgery and had minimal restrictions. He denied any
complications.
The Board has considered whether more than the minimum 30
percent rating for the knee replacement may be assigned based
on an intermediate degree of residual weakness, pain, and
limitation of motion, rating by analogy under diagnostic
codes 5256, 5261, or 5262. 38 C.F.R. §4.71a, Diagnostic Code
5055 (2003).
The most recent VA examination performed in 2002 shows some
limitation of motion of the left knee but not ankylosis or
complete immobility of the knee. Thus, an increased rating
under Diagnostic Code 5256 is not indicated. The current 30
percent rating is the maximum evaluation allowed for
limitation of flexion of a knee or leg (38 C.F.R. § 4.71a,
Diagnostic Code 5260), and the degree of limitation of
extension reported falls short of what is required for a
rating in excess of 30 percent under Diagnostic Code 5261.
There is no medical evidence dated in recent years to
indicate otherwise. As the medical records show that the
veteran's prosthetic left knee is stable and intact, there is
clearly no support for a finding that the knee should be
rated 40 percent by analogy to nonunion of the tibia and
fibula with loose motion under Diagnostic Code 5262. See
Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the
Board's choice of diagnostic code should be upheld so long as
it is supported by explanation and evidence).
The Board finds that the relevant clinical findings reported
in 2002 adequately portray the veteran's degree of functional
loss (38 C.F.R. §§ 4.40, 4.45 (2003); DeLuca v. Brown, 8 Vet.
App. 202 (1995)), and they are not consistent with any
additional limitation of motion or favorable or unfavorable
ankylosis due to any weakened movement, excess fatigability,
or incoordination. The medical evidence shows no additional
functional loss due to pain and, as noted above, the most
recent VA orthopedic examination report did not demonstrate
significant functional loss.
The Board finds that the medical evidence does not support a
rating in excess of 30 percent under the applicable rating
criteria. The Board therefore finds that a preponderance of
the evidence is against the claim for a rating in excess of
30 percent for status post arthroplasty, of the left knee and
that the benefit-of-the-doubt rule does not apply.
38 U.S.C.A. § 5107(b) (West 2002).
ORDER
1. Entitlement to service connection for left leg disability
is denied.
2. Entitlement to service connection for low back disability
is denied.
3. Entitlement to a rating in excess of 30 percent for
bilateral pes planus is denied.
4. Entitlement to a rating in excess of 30 percent for
status post left total knee arthroplasty is denied.
REMAND
The veteran has claimed service connection for disability
involving the right lower extremity.
According to a March 2002 VA examination report, the examiner
concluded that the veteran had right knee arthritis which was
clearly the result of a meniscotomy performed in 1961 due to
the veteran's reported history of events in service.
However, in this case, there is little competent evidence
that the veteran sustained a chronic disability involving the
right lower extremity while in service. Although available
service medical records show that he was treated for right
ankle sprain there was no evidence of chronic disability at
separation. Moreover there is no evidence that the RO has
attempted to obtain the medical records pertaining to the
veteran's post service right knee surgery in 1961. The RO
must obtain these treatment records because they may contain
medical findings and other conclusions that might be
determinative in the disposition of the claim.
The veteran has also raised the possibility that he has
developed a disability involving the right lower extremity
secondary his service-connected pes planus or left knee
disabilities. 38 C.F.R. § 3.310 (2003). In Allen v. Brown,
7 Vet. App. 439, 448 (1993), the U.S. Court of Appeals for
Veterans Claims, (the Court) defined aggravation of a non-
service-connected disability by a service connected
disability as any additional impairment of earning capacity
resulting from an already service-connected condition, and
held that when aggravation of a veteran's non-service-
connected condition is proximately due to or the result of a
service-connected condition, such veteran shall be
compensated for the degree of disability (but only that
degree) over and above the degree of disability existing
prior to the aggravation). Adequate medical opinion
regarding the etiology of the veteran 's claimed right leg
disability is deemed warranted for the Board to equitably
decide this appellate issue, and should therefore be
obtained.
As to the claim for a TDIU, the Board notes that because the
veteran's service connected disabilities currently have a
combined rating of 60 percent (i.e., pes planus and left knee
disability, each evaluated as 30 percent disabling), this
claim, if granted, could effect the outcome of the veteran's
current claim for a TDIU. See 38 C.F.R. § 4.16(a) ("Total
disability ratings for compensation may be assigned, where
the schedular rating is less than total, when the disabled
person is, in the judgment of the rating agency, unable to
secure or follow a substantially gainful occupation as a
result of service-connected disabilities: Provided that, if
there is only one such disability, this disability shall be
ratable at 60 percent or more, and that, if there are two or
more disabilities, there shall be at least one disability
ratable at 40 percent or more, and sufficient additional
disability to bring the combined rating to 70 percent or
more.")
Therefore, the Board finds that the claim of service
connection for a right lower extremity disability is
intertwined with the veteran's claim for a TDIU.
Accordingly, the adjudication of the TDIU issue must be
deferred pending adjudication of the claim of service
connection for a right leg disability by the RO. See Harris
v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is
inextricably intertwined with another claim, the claims must
be adjudicated together in order to enter a final decision on
the matter).
Additionally, while the case is in remand status, the RO
should provide appropriate notice under the Veterans Claims
Assistance Act of 2000 (VCAA). Specifically, the veteran
should be informed as to what evidence the VA would obtain,
and what evidence she would be responsible for obtaining.
See 38 U.S.C.A. § 5100 et. seq. (West 2002); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). Final adjudication by the
Board cannot be undertaken without this notice. See
Quartuccio.
The case is REMANDED for the following actions:
1. The RO must review the claims file
and ensure that all notification and
development action required by
38 U.S.C.A. §§ 5102, 5103, and 5103A
(West 2002) are fully complied with and
satisfied. See also 38 C.F.R. § 3.159
(2003). Compliance requires that the
veteran be notified of any information,
and any medical or lay evidence, not
previously provided to the Secretary,
that is necessary to substantiate the
claim. A general form letter, prepared
by the RO, not specifically addressing
the disabilities and entitlement at
issue, is not acceptable. The letter
should inform the veteran of which
portion of the information and evidence
is to be provided by the veteran and
which part, if any, VA will attempt to
obtain on behalf of the veteran. After
the veteran and his representative have
been given notice as required by
38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b), ( see also Quartuccio,
supra), they should be given the
opportunity to respond.
2. The RO should take appropriate steps
to obtain any pertinent evidence and
information identified but not provided
by the veteran, to include records of
private medical treatment, if the veteran
has provided sufficiently detailed
information to make such requests
feasible. Of particular interest are all
records from pertaining to right knee
surgery in 1961. In any case, the RO
should document attempts to ensure all
contemporary records of pertinent VA
treatment or evaluation are associated
with the claims file. If the RO is
unable to obtain any pertinent evidence
identified by the veteran, it should so
inform the veteran and request her to
submit the outstanding evidence.
3. The March 2002 examiner should be
asked to review the claims folder,
examine the veteran if necessary, and
provide a statement detailing the basis
for the conclusion in the examination
report that the veteran's right knee
arthritis is related to an inservice
injury. The examiner should be given an
opportunity to supplement his prior
statement with medical evidence and
comment on the significance, if any, of
the service medical records. If the
March 2002 examiner is no longer
available, the veteran should be referred
for a new VA examination. In either case
the physician should provide a complete
diagnosis and determine the nature of any
current disability of the right lower
extremity and identify the etiology. Any
examination should include any diagnostic
testing that is deemed necessary for an
accurate assessment and the physician
should review the results of any testing
prior to completing the report.
On the basis of the current examination
findings and information in the claims
file, the examiner should render an
opinion as to whether it is at least as
likely as not that any disability of the
right lower extremity including right
knee arthritis is attributable to any
disease or injury suffered during the
veteran's service, intercurrent causes,
or to a combination of such causes or to
some other cause or causes.
If the veteran does not currently have
disability involving the right lower
extremity, which could be regarded as
having been incurred in or aggravated
while the veteran was in service, the
examiner must specifically indicate so.
In the alternative, the physician should
determine whether the veteran's service-
connected left knee or pes planus
disability is causally or etiologically
related to the development of any
diagnosed disability involving the right
lower extremity. The examiner should
also state an opinion as to the medical
probability that any currently
demonstrated right knee disability
increased in severity as a result of the
service-connected left knee or pes planus
disability--i.e., an increase in severity
or an exacerbation of symptoms and, if
so, to what extent. If such aggravation
is found, the increment should be
identified and defined in terms of actual
reported findings on examination.
The report must be based on a review of
the claims folder. Any opinion provided
should include discussion of specific
evidence of record, including the service
medical records and the March 2002 VA
opinion. If the examiner agrees or
disagrees with any opinion of record,
he/she should specify the reasons
therefore. The examiner must set forth
the complete rationale underlying any
conclusions drawn or opinions expressed.
4. The veteran must be given adequate
notice of the date and place of any
requested examinations. A copy of all
notifications must be associated with the
claims folder. The veteran is hereby
advised that failure to report for a
scheduled VA examination without good
cause shown may have adverse effects on
his claim.
5. After completing the requested
action, and any additional notification
and/or development deemed warranted, the
RO should readjudicate the claim by
evaluating all evidence obtained after
the last statement or supplemental
statement of the case (SSOC) was issued.
The RO should then determine whether the
veteran meets the rating criteria for
TDIU set forth in 38 C.F.R. §§ 4.15, or
4.16(a). The RO should also determine
whether the veteran is precluded, solely
by his service-connected disabilities,
from following a substantially gainful
occupation and, if he is so precluded,
assign TDIU, if appropriate.
6. If the benefits sought on appeal
remain denied, the RO must furnish the
veteran and his representative an
appropriate supplemental statement of the
case and allow them a reasonable period
of time to respond. The SSOC must
contain notice of all relevant actions
taken on the claim for benefits, to
include a summary of the evidence and
applicable law and regulations considered
pertinent to the issue currently on
appeal, including VCAA and any other
legal precedent.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans Benefits Act of 2003, Pub. L. No.
108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified
at 38 U.S.C. §§ 5109B, 7112).
______________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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